Rights v Rights

In everyday life when someone asserts that they have a right it’s often accompanied by a hands on hips sort of manner that acknowledges little else other than the asserter’s sense of entitlement.

Rights based arguments in the Courts though come up against competing values. Sometimes these competing values are other starkly cataloged values such as those set out in the New Zealand Bill of Rights Act 1990 and sometimes they are fundamentals that are drawn from elsewhere.

The High Court in a case concerning abortion dealt with this conflict in a recent decision, Right To Life New Zealand Inc v The Abortion Supervisory Committee. Right to Life could draw in aid of their argument the right not to be deprived of life guaranteed by section 8 of the Bill of Rights. The Committee couldn’t point to a right to liberty and security of the person which in other countries underpins access to abortion. Nevertheless the Committee prevailed in this part of the argument. Prominent in the decision was the “born alive rule” which recognises fetuses as human beings after birth. Justice Miller wasn’t impressed by medical evidence (intended by Right to Life to undermine the rule) about the way that fetuses develop and he pointed out that there were other reasons for the rule – “…it reflects the autonomy afforded women of full capacity, and any other approach risks leading the Courts to assume control over their behavior and lifestyle choices during pregnancy.”

Assertions of rights in the Courts are inevitably often just another way of characterising an argument – they rarely end the debate.